R v Day (No 2)
[2022] ACTSC 352
•16 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Day (No 2) |
Citation: | [2022] ACTSC 352 |
Hearing Date: | 11 November 2022 |
DecisionDate: | 16 December 2022 |
Before: | Kennett J |
Decision: | See [85]–[89] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – choke, suffocate, strangle – threat to kill – contravene family violence order – convictions recorded – sentences of imprisonment imposed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Dealing with related offences of common assault and damage property – where accused convicted of some but not all charges on the indictment – not guilty on common assault charge – guilty on damage property charge – conviction recorded and fine imposed |
| Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 28, 30, 116 Evidence Act 2011 (ACT), s 4 Supreme Court Act (ACT) ss 68D, 68E |
Cases Cited: | Cheung v R [2001] HCA 67; 209 CLR 1 Degioannis v Boxx [2017] ACTSC 7 R v Williams [2016] ACTSC 389 |
Parties: | The Queen ( Crown) Benjamin Paul Day ( Offender) |
Representation: | Counsel D Swan ( Crown) K Musgrove ( Offender) |
| Solicitors Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 1, 2 of 2022 |
KENNETT J:
Introduction
The offender, Benjamin Paul Day, is to be sentenced for the following offences, having been found guilty of them by a jury on 9 September 2022:
(a)Two counts of choke, suffocate or strangle, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (Crimes Act).
The maximum penalty is imprisonment for five years.
(b)Threat to kill, contrary to s 30 of the Crimes Act.
The maximum penalty is imprisonment for ten years.
(c)Contravene family violence order, contrary to s 43(2) of the Family Violence Act 2016 (ACT) (Family Violence Act).
The maximum penalty is imprisonment for five years, a penalty of $80,000 or both.
I consider it to be in the interests of justice also to deal with the following two related offences that were transferred to this Court from the Magistrates Court pursuant to s 90B(3) of the Magistrates Court Act 1930 (ACT) (see s 68D(2) of the Supreme Court Act 1933 (ACT) (Supreme Court Act):
(a)Common assault, contrary to s 26 of the Crimes Act; and
(b)Damage property, contrary to s 116(3) of the Crimes Act,
(the transfer charges).
Facts
It is necessary for me to find facts for the purpose of sentencing: Cheung v R [2001] HCA 67; 209 CLR 1 (Cheung). The conduct particularised as constituting the transfer charges is alleged to have occurred on the same evening as, and indeed shortly before and after, conduct particularised as constituting the offences on the indictment and considered by the jury. As my findings in relation to those offences are relevant to a consideration of the transfer charges, I will set them out first.
My findings in relation to the offences on the indictment must be consistent with the verdicts reached by the jury (see, eg, Cheung, [14]). In this connection I note that the jury found the offender not guilty on two other counts of threat to kill. These threats were alleged to have been made on the same evening and in the same premises as the other offending, temporally in between the first and second of the choking offences. I infer that the jury had doubts about the correctness of the victim’s evidence in relation to that part of the sequence of events. I have proceeded on the basis that the foundation for the guilty verdicts reached by the jury was an acceptance of at least the essential aspects of her evidence in relation to the events giving rise to the charges of which they found the offender guilty.
The victim of the offences knew the offender well. The two had a short relationship in 2015 or 2016 that ended acrimoniously. The offender was in a different relationship for three years to 2019, after which the offender and victim started seeing each other again. They separated briefly on a number of occasions in the months leading up to the offending (which occurred on the night of 1 September 2021).
At around lunchtime on 1 September 2021, the victim returned to the offender’s house, where she had spent the previous night. She had left in the morning to check on her own house, feed her dog and have a Buvidal injection. Buvidal is used to treat opioid dependence.
During the afternoon, the offender and the victim watched TV together. The offender had not been to work for a number of weeks but planned to go to work the next day. In order to facilitate this return to work, the victim helped prepare a lunch for him to take. She also gave the offender some Suboxone strips, which, like Buvidal, are used to treat opioid dependence.
After having dinner, the offender and victim returned to watching TV, laying down on a mattress which was on the floor between the couch and the TV in the loungeroom. Shortly after 11:00PM, the offender asked for the TV to be turned off. The victim turned off the TV and the lights and settled down to bed.
Around 20 minutes later, the offender started muttering under his breath, saying words to the effect of “I hate you, I hate you”. He said that he was not going to work in the morning nor having any Suboxone. After around 30 seconds to a minute, he pushed the victim off the mattress and onto the ground (a distance of only around 30cm). He then stood up and walked around the bed to where the victim was lying on her side. He turned on the lights. the victim gave evidence that he punched her once in the side of the head, behind the ear; however, in my view this has not been established beyond reasonable doubt. He then put either one or both of his hands on the sides of the victim’s neck. He applied a level of force that the victim ranked as “about a five” (where “one” is a hand being placed against the skin, and “10” is somebody squeezing as hard as possible). This continued for around 10 or 20 seconds. It did not restrict the victim’s breathing and she considered it “just like a warning” (Count 1Choke, suffocate or strangle—).
Some hours later, between 3:00AM and 4:00AM, the offender started telling the victim to “get out”. The victim was scared the offender might assault her if she picked up and took his keys, so she asked whether he was sure. The offender again told her to leave and so the victim took the keys. She was in the process of opening the front door when the offender attempted to prevent her from leaving by grabbing her from behind. The victim leaned forward and the two tumbled through the door.
The victim crawled a couple of metres along the ground to a pole that supported the roof of a pergola outside the front of the house. Still on the ground, the victim wrapped her right leg around the pole and grabbed the pole with her hands. The offender placed two hands around the victim’s neck and tried to pull her off the pole and back towards the house. At this point, the offender was applying so much pressure to the victim’s throat that she could not breathe. She ranked the level of force as being eight out of 10. In order to get a better grip to pull the victim, the offender put one hand under her arm while keeping the other against her throat. At this point the level of force against her throat was lower; the victim ranked it a six out of 10. (Count 2Choke, suffocate or strangle—).
While the offender was changing position from having two hands around the victim’s neck to having only one, the victim attempted to shout “help”, but her voice was muffled. She tried to shout a number of further times but was not very loud. At around this time, according to the victim’s evidence, she and the offender both thought a light had come on across the road. The offender said words to the effect of “That’s it. You’re fucked. I am dragging you back inside right now, and you are dead. The police are coming. We’re both gonna die tonight”. (Count 3Threat to kill—).
The offender then ran back into his house, and the victim ran across the road where neighbours called the police. The victim estimated there was only around a minute, to a minute and a half, between when she escaped out of the house to when she ran across the road.
There was evidence in the trial from neighbours who lived across the street at the relevant time, most of which was inconsistent with any light having come on before the victim crossed the road. There is thus some uncertainty as to whether what the offender said to the victim, and his retreat back inside the house, were prompted by a neighbour’s light. However, the jury’s verdicts mean that I should proceed on the basis that the struggle at the front of the house occurred as alleged by the victim and included the offender saying words to the effect alleged.
On 27 November 2020 a family violence order had been made that, among other things, prohibited the offender from being within 100 meters of the victim and engaging in behaviour that constitutes family violence against her (FVO). The conduct described above constituted the contravention of the FVO (Count 4Contravene family violence order—).
Transfer charges
In dealing with the related offences this Court acts as if it were, and exercises the same functions as, the Magistrates Court. Leave has not been sought to call additional evidence as contemplated by s 68E of the Supreme Court Act, so that section requires me to deal with the offences on the basis only of the evidence given during the trial.
Transfer charge of common assault
The Crown case statement particularised the common assault as being one punch to the forehead and two punches that hit the victim’s hands which she raised over her head, while holding the doona, to try to protect herself. It is alleged to have occurred “while the complainant was in the lounge[room] behind the couch”.
The family violence evidence-in-chief interview (FVEICI) recorded in the early hours of 2 September 2021 contains evidence consistent with these particulars. That evidence was not, however, very detailed or confident. The victim told police that she went behind the couch because she did not want to be near the offender. She said she took a blanket and pillows and that “it was probably twice after that, he came – you know, I’m not sure if it was a half hour or 45-minute gaps [sic] between – to assault me while I was behind the couch.” The victim explained that “the first time” the offender got out of bed, he said “I hate you. I’m going to bash the fuck out of you” and then “walked up” and punched her in the head. She described managing to get her “hands up” and said that, although he tried to punch two more times, she had “the blanket and the doona up and over me, and I think [the punches] hit my hands instead”. She then said, apparently referring to the same series of actions “I am not sure if there was another time before the time that I managed to get out of the door”. I take that to mean that the victim was not sure whether the offender assaulted her again behind the couch before she escaped outside as described above.
These events were not bound up in aspects of the victim’s evidence which I must regard the jury as having accepted or rejected. I have therefore made my own assessment.
For the victim the night was traumatic and not divided into particular acts constituting discrete offences. The fact that the victim was confused about whether three punches occurred the first or the second time the offender came behind the couch, or indeed whether the offender came behind the couch multiple times, may not give rise to a reasonable doubt about whether that offending occurred. However there are three matters which, taken together with that confusion, I think must result in a reasonable doubt.
First, the victim’s evidence at the trial compounded the confusion in the FVEICI. During her evidence-in-chief she said that after she went to lay down behind the couch the offender came up and pushed the doona over her head and said “’stay under the blanket’”. On this occasion “[h]e didn’t assault me, he just pushed the doona over my head and said, ‘stay under the blanket’”. She found further incidents difficult to describe as “this part of the night is such a blur to me”.
Counsel for the Crown pointed me to a section of her evidence-in-chief where the victim said that, while she was behind the couch, “it felt like roughly every 20 minutes or half an hour [the offender] would work himself up into such a state where he would lose his temper and he would come behind the couch and do something to me.” She described occasions where the offender “just grabbed me by the hair and was screaming in my face” and where the offender “threw my shoes at me”. The victim did not mention being punched. This point was not pursued in great detail, no doubt because counsel were, quite reasonably, focussed on the indictable offences being considered by the jury.
Secondly, this is not a situation where significantly more weight should be placed on the FVEICI evidence than the evidence given at trial on the basis that events were fresher when the former took place. During the trial the victim said on a number of occasions that she was confused during the FVEICI and, on one occasion, that her FVEICI evidence on a particular issue was incorrect and should not be preferred to evidence she was giving at trial because she had “remembered lots of other things that had happened that night”. I consider that I must view the FVEICI evidence with a degree of caution.
Thirdly, a record from Calvary Public Hospital, which was part of the evidence in the trial, records that the victim said she had suffered “nil head strike or loss of consciousness”. I give this matter only limited weight given the victim was confused at the time, but it does suggest that the offending as particularised did not occur.
Accordingly, I will find the offender not guilty on this charge.
Transfer charge of damage property
The second transfer charge is of damaging property contrary to s 116(3) of the Crimes Act. The property in question is the victim’s phone which, it is accepted by the parties, was damaged to some degree on the night of the offending. The Crown alleges that the offender damaged the victim’s phone by breaking it into at least two pieces. The offender gave an explanation about how the phone was broken. He claims to have seen the victim drop the phone on the lawn, after which he walked outside his house, picked up the phone and “chucked it on the ground”. This version of events was a part of a narrative in which the victim never entered the offender’s house on the night of the offending. Clearly that narrative is contrary to the jury’s findings of guilt and to my own factual findings set out above.
I am satisfied that the victim saw her phone intact when she looked into her handbag at some stage after the first choking occurred. At this point she would have been in fear and wanting to use the phone to call the police. The victim stated that she did not take her phone out of her handbag because the offender was nearby and might have seen her do so. The next time she looked into her handbag it was gone. Later in the evening, after the phone had been damaged, the offender handed it back to the victim.
I am satisfied beyond reasonable doubt that it was the offender who damaged the victim’s phone. Although the victim did not see it occur, the two of them were the only people in the house and there was no suggestion that the victim damaged her own phone.
Similarly, all possibilities other than that the offender intended to cause damage to the phone (or was reckless about damaging it), can be excluded beyond reasonable doubt. It would be fanciful to think, in the context of the serious offending outlined above, that the offender took the victim’s phone out her handbag and broke it accidentally.
Because I am also satisfied beyond reasonable doubt that the offender damaged the phone other than by fire or explosive, that the phone did not belong to him and that the damage did not exceed $5000, I find the offender guilty on this charge.
I note that the maximum penalty for this offence is a fine of $8000, imprisonment for two years, or both.
Victim impact statement
The victim prepared a victim impact statement (VIS) in which she describes significant and ongoing consequences of the offending on her life.
Counsel for the offender submitted that parts of the VIS should be given little weight because they go beyond what is supported by available objective evidence or because the link between the offending and the harm suffered is indirect.
On the first point, I consider that I cannot be satisfied only on the basis of the VIS that the offender had lumps all over the back of her head or that she suffers from nerve damage and sciatica as a consequence of the offending. A VIS from a lay person is not a sufficient basis to diagnose particular injuries or medical conditions.
The second point is more difficult. The VIS describes different kinds of harm that are at various degrees of removal from the offending conduct. It states that the victim spent three months in hotel and motel accommodation after the offender was granted bail; that the frequent relocation resulted in poor sleep, the need to dispose of belongings including things of sentimental value and, most significantly, strain on the victim’s relationship with her daughter who “lost her home” because she needed to move from place to place with her mother. The use of emergency accommodation also meant that the victim’s pets spent several weeks in kennels and catteries and that, since then, her dog has been more aggressive.
Counsel for the offender submitted that the offender did nothing once he was granted bail that required the victim to seek alternative accommodation: it was the victim’s own decision to leave her house, which resulted in much of the harm described and, therefore, little weight should be attributed to that harm.
Although this issue was not explored during the sentencing hearing, I have proceeded on the basis that the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) has not altered what seems to be the common law position that a court can only have regard to the consequences of an offence that were intended or could reasonably have been foreseen: Josefski v R [2010] NSWCCA 41; 217 A Crim R 183, [3]–[4] and [38]–[39]. In my view, the victim using emergency accommodation was a foreseeable consequence of the offending. It could hardly be cause for any surprise for the offender that the victim felt as if she needed to live in a location unknown to him and that hardship would result from this move.
I have approached the remainder of the VIS similarly cautiously, as the authorities establish that I am required to do in these circumstances. Even so, I accept that the offending caused the victim significant emotional harm. This includes ongoing harm, such as the victim's fear that further health problems might arise as consequence of being choked and her desire to avoid getting home after dark and walking in certain areas. I also accept that offending caused at least temporary physical harm, including to her neck and knee.
Finally, I note that the victim described that the court process as painful. She stated that she often felt like she was not being taken seriously. She said that during interviews with police she felt as if she had done something wrong or was under investigation. Concerningly, the victim also said that the trauma and stress of the trial caused her to relapse into drug addiction. Although the parties did not address me on the issue, I have not given these matters any weight. The offender was entitled to plead not guilty and should not be punished for the consequences of the court process that followed: Sentencing Act s 34(1)(f).
Objective seriousness
A number of aspects of the offending are relevant to the objective seriousness of each offence, or more than one of them. I have not taken into account at this point the fact that the offending occurred while a family violence order was in place, as that is an element of a separate offence. However, it is relevant that the offending occurred in the context of an intimate (albeit somewhat unstable) relationship where the victim was entitled to trust the offender to some degree. It took place at the offender’s house where the victim was isolated and denied access to her phone. I have set out my findings in relation to the impacts of the offending on the victim above, but note that the two counts of choke, suffocate, strangle resulted in bruising to the neck, a hoarse voice and difficulty swallowing.
Counts 1 and 2: Choke, suffocate, strangle
Factors such as duration, amount of force, extent of obstruction of breath, resulting injuries and surrounding circumstances are relevant to a consideration of the objective seriousness of offences of this kind.
The first count falls in the low range of objective seriousness but the upper end of that range. It was unprovoked and occurred just after the victim was pushed out of bed. The duration was short relative to the comparative cases, but far from fleeting. The amount of force used was described as being approximately five out of 10. It did not restrict the victim’s breathing but must have caused some fear. Increasing this act’s objective seriousness is the fact that it was accompanied by verbal abuse and, as noted above, in circumstances where the victim was isolated and vulnerable.
The second count was more serious. It involved a significant degree of force and resulted in the victim being unable to breathe. It was accompanied by a threat to kill and attempts to drag the victim back inside the house from which she was attempting to flee. I consider that this falls within the mid-range of objective seriousness of offences of this kind, but the lower end of that range. The duration was relatively short and there is no evidence the victim suffered from effects such as dizziness.
Count three: Threat to kill
The circumstances surrounding the making of a threat to kill are very relevant to an assessment of the threat’s seriousness: R v Williams [2016] ACTSC 389, [45].
The fact there was no weapon involved at the time the threat was made makes this offending less serious than it would otherwise have been, but not greatly so. The surrounding circumstances were such that the victim would have considered the threat quickly realisable. She had just been choked to the point of being unable to breathe. Inside the house, where the offender was trying forcibly to take her, were a number of items capable of being used as weapons. I consider this offence to be a serious offence of its kind.
Count four: Contravene family violence order
The case statement particularised this count in only very general terms. It provided that by permitting the victim to attend the offender’s house the offender breached the condition 1(b) of the FVO and that by committing any of the offences on the indictment against the victim, the offender breached condition 1(e) of the FVO. Those conditions are as follows:
(1) The respondent is prohibited from:
(b)being within 100 metres of the protected person(s);
(i)except at a Court or Tribunal proceeding;
(ii) except at a counselling or mediation session or restorative justice conference arranged with the protected person’s consent;
…
(e)engaging in behaviour that constitutes family violence towards the protected person(s).
It was conceded on behalf of the Crown during the trial that because such a broad range of conduct might constitute a breach of the FVO, it was only conduct consistent with the other counts on the indictment (explained as being matters which surround the circumstances of the choking and threatening) that would be relied upon as constituting a contravention of the family violence order. Those acts contravened the order in that they constituted family violence as defined in the Family Violence Act.
In these circumstances I do not think it is appropriate for me to engage in a wider fact-finding exercise than that which I have undertaken above.
I find that the relevant conduct falls in the upper end of the mid-range of objective seriousness for offences of this kind. However, because the acts relied upon constitute elements of other offences, there will be significant periods of concurrency in the sentence I impose in relation to this offence.
Transfer charge: Damage property
This offending is in the lower range of objective seriousness for offences of its type. Photographs make it clear the phone was significantly damaged, but it is not established beyond reasonable doubt that it was rendered inoperable: a police officer gave evidence that it was heard ringing inside the house when police arrived to speak to the offender.
Subjective features
The Court was provided with a pre-sentence report dated 9 November 2022 addressing the subjective circumstances of the offender. Unfortunately, the report came with a disclaimer that “much of the information contained in this report was unable to be verified due to Mr Day failing to provide a suitable contact for verification”.
The offender is 46 years of age.
He reported a difficult upbringing. His parents separated when he was approximately seven years of age and his mother remarried when he was young. The offender reported being subjected to physical abuse by his stepfather at least once per week from the age of 12 to approximately the age of 17 or 18.
On his account, the offender moved to Moruya, NSW, to live with his father at 15 or 16 years of age and had a supportive relationship with him until his death in October 2019. The offender reported a strained relationship with his mother, including a 16-year period of no contact due to abuse he endured from his stepfather. The offender initially reported a close relationship with his sister but their relationship deteriorated during the preparation of the report due to an incident involving the offender’s niece.
The offender described his relationship with the victim in negative terms. He claimed to have funded her illicit substance use, but not to have used the substances himself. He denied that there was abuse in the relationship outside of the present offences.
He also spoke to the author of the pre-sentence report about the relationship he was in from 2016 to 2019. The offender denied physical violence in this relationship. He claimed that an offence of common assault that arose out of it was related not to physical violence but causing his then partner to feel threatened. He maintained that the subsequent breach of an FVO was not caused by any attempt to be violent or threatening. There is one child of this relationship, with whom the offender stated he had a positive relationship.
The offender has another daughter, who is 18, from a different relationship. He reported that they are in regular contact via email and when he was in the community they would visit each other.
The offender stated that he had a fairly consistent history of employment since leaving school at the end of year 10, save for periods he has spent in custody. Letters from the directors of a towing company and a tool sharpening company were tendered at the sentence hearing. They state that the offender was a valued and punctual employee to whom they would offer employment when he is released from custody. Although the letters state they were written in support of a bail application, I have proceeded on the basis that the offers stand notwithstanding the jury’s findings of guilt and the convictions I make below.
The offender told the author of the pre-sentence report that supervisors at his work are prosocial and supportive associates. He claimed that he has not engaged with antisocial associates for around five or six years.
The offender reported that he first consumed alcohol when he was 14 or 15 years old and that he would spontaneously binge drink every three to six months when he was between the ages of 20 and 35. He claimed to have consumed alcohol only on an irregular basis over the past five years because he recognised it had negative consequences for him.
The offender stated that his father gave him cannabis when he was 13 years old and that when he was 16 or 17 he was using approximately 0.5g of cannabis per day. He claimed last to have used cannabis five or six years ago.
The offender reported that he first used methamphetamine when he was approximately 30 years old, and that he was smoking one point of methamphetamine daily for two or three years. He claimed that this reduced to weekly use for a period and that approximately five or six years ago he ceased using the drug altogether.
He stated his use of heroin has been limited to experimental use when he was 35 years old and use in August 2021 in the context of suicide attempts. He said that he had requested the victim inject him with heroin to help him commit suicide.
The offender reported no medical concerns other than awaiting dental surgery on his wisdom teeth.
He stated that his General Practitioner had indicated diagnoses of depression, anxiety and bipolar disorder or “split personality disorder”. A Canberra Health Services letter dated 2 December 2021 provided to the author of the pre-sentence report stated that the offender had been diagnosed with borderline personality disorder and substance use disorder. However, the offender denied the use of medication to address any potential diagnoses and claimed his mental health was stable. Counsel for the offender did not seek to rely upon the principles set out in R v Verdins [2007] VSVA 102; 169 A Crim R 581.
The offender displayed a confusing and concerning attitude to his offences to the author of the pre-sentence report. He claimed to have accepted the decision of the Court, but also maintained he did not commit the offences. He attributed his actions to emotional turmoil he was experiencing after his separation from his former partner. He also stated that his actions were unjustified, that he was seeking support for mental health issues and that he felt guilty for what he had done. It was noted by the author of the pre-sentence report that these statements appear to be in direct contradiction the offender’s belief that the offences did not occur. I agree, and also note that the offender separated from his former partner almost two years prior to the offending.
The offender was assessed as suitable for an intensive corrections order.
The offender bears the burden of proving on the balance of probabilities matters which are submitted in his favour: Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou) at [64], [66]. Although the rules of evidence do not apply in this proceeding (Evidence Act 2011 (ACT), s 4(2)), I have reservations about accepting at face statements made to the author of the pre-sentence report, untested in cross-examination.
This is especially the case, given the disclaimer in the report referred to above, where statements appear self-serving. I note that in at least two instances there was evidence adduced at trial that is inconsistent with the offender’s statements to the author of pre-sentence report. The victim gave evidence that she asked the offender for some cannabis and that he said she “wasn’t allowed to have any of the good stuff that we had, that I had to smoke the leaf, that the good stuff was for him.” The victim also repeatedly denied that she had ever bought heroin for the offender to assist him commit suicide, though she had, on her version of events, repeatedly bought him heroin. In these circumstances I do not accept that the offender ceased using drugs five or six years ago. I do, however, accept that the offender had a difficult upbringing.
I also note, and take some comfort in the fact, that since being in custody the offender completed a number of workbooks and programmes including Seasons for Growth, Thrive 1, Working Together, Making My Way, Keeping Myself Well, Introduction to Recovery, Goal Setting and Conflict Resolution.
Other sentencing considerations
Criminal History
The offender has a significant criminal history. It was noted by Refshauge J when he was sentencing the offender for family violence offending in 2012, that “this is by no means the first such offence of this type that Mr Day has committed”: R v Day (Unreported, Supreme Court of the ACT, Refshauge J, 5 July 2012). Since then the offender has been convicted of two contraventions of family violence orders (one on 25 January 2022, and one on 5 June 2020) as well as one common assault which, as noted at [56], he states was committed in the context of family violence.
Time in custody
Mr Day has spent 279 days in custody solely referrable to this offending. He was in custody for two days immediately following the offending (2 September 2021 and 3 September 2021). On 15 September 2021 his bail was revoked. Between 15 September 2021 and 14 March 2022 he was in custody in relation to a separate charge (the more recent offence of contravene family violence order referred to above). Since then he has been remanded in custody in connection with this offending. The result is that I should backdate the sentence I impose today by 279 days to 13 March 2022.
Comparative cases
I was referred by the Crown to comparable cases for the offences of choke, suffocate, strangle: R v Cowling [2019] ACTSC 138 (Cowling) and R v Van Duren [2017] ACTSC 132 (Van Duren); and the offence of threat to kill: R v Williams [2018] ACTSC 354 (Williams) and Degioannis v Boxx [2017] ACTSC 7 (Degioannis).
Cowling occurred in the context of family violence. While the victim was at the offender’s house, the offender choked the victim three times. The first went for over a minute and the victim felt as though she would pass out. The second occurred after the victim told him she was leaving him and resulted in her feeling dizzy and struggling to breathe. The third went for about 20 minutes. These three instances were rolled up into one charge. The offender was sentenced to three years’ imprisonment, reduced to two years and six months in recognition of the plea of guilty. The sentence was served by way of an intensive corrections order (ICO). The offender had good prospects of rehabilitation and only a limited criminal history.
The case of Van Duren involved the offender choking a RSPCA inspector who had, over a short period of time, seized two dogs in the possession of the offender. The offender broke into RSPCA premises and removed one of these dogs. Police and RSPCA inspectors attended his house. A fight broke out when the offender realised the dog was going to be seized. In an attempt to take capsicum spray from an RSPCA inspector, the offender placed his left hand around her neck and strangled her. The inspector’s voice became strained and her face turned a dark red. She experienced difficulty with breathing, believed that she was on the verge of losing consciousness and contemplated the prospect that she might die. The offender was sentenced to two years and six months’ imprisonment, reduced to two years’ imprisonment for the plea of guilty. The sentence was entirely suspended upon entry into a good behaviour order. Of particular significance was the offender’s post-traumatic stress disorder, good character and a report from an independent forensic psychiatrist that considered a sentence of imprisonment could have a deleterious effect on the offender’s psychological condition.
The offending in Williams also occurred in the context of family violence. The offender was on bail in relation to family violence charges against his partner, who was the mother of his baby daughter and an unborn child. The details of the threat are not entirely clear from the facts, but it occurred while the victim was being unlawfully confined in her home by the offender. Burns J considered that it was in the lower range of offences of this nature. The subjective circumstances of the offender are significantly different to those of Mr Day. The offender had a “not particularly lengthy criminal history” and was a non-citizen whose visa had been cancelled. Burns J found that there was virtually no prospect of the offender complying with an ICO because he was likely to be deported to New Zealand if released from custody. The offender was sentenced to 12 months’ imprisonment for the threat to kill, after a discount of approximately 25 per cent in recognition of the plea of guilty.
Degioannis was an appeal against a sentence imposed by a Magistrate. The offender (who was the appellant) made a threat to kill his former partner while he was in custody. The threat was made to a program provider, rather than to the former partner herself, but the circumstances gave rise to a fear that the threat might be carried out. The offender was re-sentenced by Elkaim J to a term of imprisonment of 22 months, with the final six months to be suspended upon entry into a 12 month good behaviour order. In re-sentencing, Elkaim J took into account further evidence which indicated that the offender’s words had been misinterpreted and he intended no harm to his former partner.
Consideration
I have taken into account the factors set out in s 33 of the Sentencing Act, to the extent they are relevant, above. I have also had regard to the purposes of sentencing contained in s 7 of the Sentencing Act. Specific deterrence is a prominent sentencing purpose given the offender’s criminal history. Other relevant purposes include general deterrence, adequate punishment, the need for accountability and recognition of the harm done to the community.
Counsel for the offender conceded that it is open for the Court to determine that the s 10 threshold has been crossed. In my view, at least when viewed as a whole, the offending is clearly so serious that nothing other than a term of imprisonment is warranted.
It was submitted on behalf of the offender that an ICO should be imposed. Given the offender’s criminal antecedents I do not consider that a community-based sentence would adequately fulfill the sentencing purposes outlined above, particularly that of general deterrence. In any event, an ICO is not an available sentencing option because the term of imprisonment that I have concluded is appropriate is longer than four years.
Rehabilitation of the offender is a purpose of sentencing which would arguably be facilitated by an ICO if that option were available. In view of the offender’s fairly lengthy criminal history, which includes repeated family violence offences and other offences involving violence persisting into his forties, his prospects of rehabilitation must be regarded with caution. The nonparole period that I will fix will, it is to be hoped, give him an incentive to pursue opportunities for rehabilitation.
I have also had regard to the fact that each of the offences on the indictment is a serious family violence offence for the purposes of s 34B of the Sentencing Act. As a result I have, as I am required to do, taken into account the fact that the offender has previous convictions for serious family violence offences.
In respect of the transfer charge of damage property, I am satisfied that a fine adequately fulfills the sentencing purposes.
Orders
The orders of the Court are as follows.
In respect of the transfer charge of common assault (CC2021/9198) I return a verdict of not guilty.
In respect of the transfer charge of damage property (CC2021/9197) I return a verdict of guilty.
I convict the offender of each offence for which guilt has been established and impose the following sentences:
(a) Count 1 (choke, suffocate, strangle) (CC2021/9200): imprisonment for one year, three months (commencing 13 March 2022 and expiring 12 June 2023)
(b) Count 2 (choke, suffocate, strangle) (CC2022/11): imprisonment of two years, six months (commencing 1 September 2022 and expiring 28 February 2025)
(c) Count 3 (threat to kill) (CC2022/12): three years, six months (commencing 1 February 2023 and expiring 31 July 2026)
(d) Count 4 (contravene FVO) (CC2021/9244): imprisonment for one year (commencing 13 September 2025 and expiring 12 September 2026)
(e) Transfer offence (damage property) (CC2021/9197): fine of $500 to be paid within 12 months
The total effective head sentence is imprisonment for four years and six months.
I impose a nonparole period of two years and ten months.
| I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Kennett Associate: Date: |
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